TYLER REFRIGERATION DIVISION OF CLARK EQUIPMENT COMPANY, INC.

OSHRC Docket No. 10412

Occupational Safety and Health Review Commission

June 13, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: This case is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., [hereinafter "the Act"].

On September 18, 1974, a citation was issued to respondent following an inspection of its place of business by a compliance officer of the Secretary of Labor. The citation alleged that respondent was in non-serious violation of the Act for failure to comply with occupational safety and health standards, and contained 17 different items. A notification of proposed penalty was sent on the same date proposing penalties totalling $395.

Respondent filed a timely notice of contest as to item one only. The respondent certified that the notice of contest and the Commission's "Notice to Employees" was posted, and also served on the authorized employee representative as required by rule 7 of the Commission's Rules of Procedure (29 CFR 2200.7).

The complaint and answer were filed and both were served on the authorized employee representative. The matter was then set for hearing. Following this, the record reveals that the parties were [*2] attempting to reach a settlement, and on January 23, 1975, the complainant filed a motion to dismiss the citation and complaint as to item one as well as its proposed penalty of $110. In support of the motion, the complainant asserts that the citation for item one was issued as a result of representations of respondent's plant engineer, but that this employee was mistaken and respondent was, in fact, in compliance with the standard set forth in item one. Based on this assertion on January 28, 1975, Judge David H. Harris granted complainant' motion. The record shows that neither the motion nor the Judge's decision was served on the authorized employee representative, Local No. 423, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America. The record also contains no indication that the motion was posted for the information of respondent's employees.

Review of the Judge's decision was directed on February 26, 1975, on the question of service of the motion to dismiss upon affected employees. In response to the Direction for Review, respondent filed with the Commission a document entitled "Employer's Statement Re Direction for Review" [*3] in which it contends that item one of the citation was issued because of a "lack of communications" between representatives of complainant and respondent; that as the citation should never have been issued the only result of the motion is that the Secretary and respondent now agree that respondent is, and was at the time the citation was issued, in compliance with the standard; and that no Commission Rules of Procedure are applicable to such an agreement. Respondent certified service of this document on the authorized employee representative.

We do not agree. Upon the filing of the notice of contest, Commission jurisdiction attached and our rules of procedure must govern the course of the matter until a final order is issued. Also, no matter how the case is characterized by the Secretary and respondent, it is plain that they seek a consensual disposition of the case. Accordingly, our decision in the Federal Glass Co., No. 4258 (May 28, 1975) is controlling here.

Accordingly, it is ORDERED that a copy of this decision be served upon the authorized employee representative of affected employees and posted at respondent's worksite. If no objection is filed within 10 days of [*4] such service and posting, the Judge's decision will be approved without further proceedings.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: Because the motion to dismiss was not posted at the worksite, I concur solely for the purpose of disposing of this case. It should be noted, however, that the general rule that posting of such a motion is adequate notice to employees, as set forth in Secretary v. Wheeling-Pittsburgh Steel Corp., 1 OSAHRC 808 (1974), is not altered by this decision.

[The Judge's decision referred to herein follows]

HARRIS, JUDGE: Complainant, upon re-investigation, now concedes that respondent was not in violation of the standard at 29 CFR 1910.107(j)(3)(i)(ii)(iii) as was alleged in the within citation issued on September 18, 1974, and prays that said citation be vacated, now therefore, upon complainant's prayer, it is

ORDERED that Item #1 in the within citation which alleges a violation of the standard at 29 CFR 1910.107(j)(3)(i)(ii)(iii), be and the same is hereby vacated.